BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 1176 Hearing Date: May 10, 2016
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|Author: |Cooper |
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|Version: |May 4, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JRD |
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Subject: Theft: Firearms
HISTORY
Source: Author
Prior Legislation: SB 452 (Galgiani) - died Senate
Appropriations, 2015
Support: Law Center to Prevent Gun Violence; California Peace
Officers' Association;
Coalition Against Gun Violence, a Santa Barbara County
Coalition; National Rifle Association; California
State Sheriffs' Association
Opposition:American Civil Liberties Union of California;
California Attorneys for Criminal Justice; California
Public Defenders Association
Assembly Floor Vote: Not Relevant
PURPOSE
The purpose of this legislation is to: (1) clarify that theft of
a firearm is grand theft and is punishable as a felony, as
specified; (2) provide that every person who buys or receives a
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stolen firearm is guilty of an alternate felony/misdemeanor
offense, as specified; and, (3) add the following misdemeanor
theft of a firearm (Penal Code § 490.2) and receipt of stolen
property to offenses for which a conviction results in a 10-year
prohibition on possession of a firearm.
This bill would provide that it would become effective only upon
approval of the voters, and would provide for the submission of
this measure to the voters for approval at the next statewide
general election.
Firearm Theft
Existing law provides that every person who feloniously steals,
takes, carries, leads, or drives away the personal property of
another is guilty of theft, as specified. (Penal Code § 484.)
Existing law defines "grand theft" as any theft where the money,
labor, or real or personal property taken or when the property
is taken from the person of another is of a value exceeding
$950. (Penal Code §§ 487(a) and (c).)
Existing law provides that grand theft is committed when the
money, labor, or real or personal property taken is of a value
in excess of $950, except as specified. (Penal Code § 487(a).)
Existing law provides that, notwithstanding the default value of
$950 to establish grand theft, grand theft is committed in any
of the following cases:
When domestic fowls, avocados, or other farm crops are
taken of a value exceeding $250;
When fish or other aqua-cultural products are taken from
a commercial or research operation that is producing that
product of a value exceeding $250;
Where money, labor or property is taken by a servant or
employee from his or her principal and aggregates $950 or
more in any consecutive 12-month period;
When the property is taken from the person of another;
When the property taken is an automobile, firearm,
horse, mare, gelding, bovine animal, caprine animal, mule,
jack, jenny, sheep, lamb, hog, sow, boar, gilt, barrow, or
pig;
When the property is taken from the person of another;
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or
When the property taken is an automobile and firearm.
(Penal Code § 487(b) through (d).)
Existing law states that if the grand theft involves the theft
of a firearm, punishable by imprisonment in the state prison for
16 months, or two or three years. (Penal Code § 489(a).)
Existing law provides that grand theft is an alternate
felony-misdemeanor, punishable by imprisonment in the county
jail for up to one year, a fine of up to $1,000, or both, or by
a felony jail sentence of 16 months, two years or three years
pursuant to Penal Code Section 1170, subdivision (h), and a fine
of up to $10,000. (Penal Code § 489(b).)
Existing law provides that, notwithstanding Section 487, or any
other provision of law defining grand theft, obtaining any
property by theft where the value of the money, labor, real or
personal property taken does not exceed nine hundred fifty
dollars ($950) shall be considered petty theft and shall be
punished as a misdemeanor, except that such person may instead
be punished pursuant to subdivision (h) of Section 1170 if that
person has a prior conviction for a serious or violent felony or
an offense requiring registration pursuant to 290, as specified.
(Penal Code § 490.2(a).)
This bill would make the theft of a firearm grand theft in all
cases, punishable by imprisonment in the state prison for 16
months, or 2 or 3 years.
Receipt of Stolen Firearm
Existing law provides that any person who buys or receives any
property that has been stolen or that has been obtained in any
manner constituting theft or extortion, knowing the property to
be so stolen or obtained, or who conceals, sells, withholds, or
aids in concealing, selling, or withholding any property from
the owner, knowing the property to be so stolen or obtained,
shall be punished by imprisonment in a county jail for not more
than one year, or imprisonment pursuant to subdivision (h) of
Section 1170. However, if the value of the property does not
exceed nine hundred fifty dollars ($950), the offense shall be a
misdemeanor, punishable only by imprisonment in a county jail
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not exceeding one year, if such person has no prior convictions
for an offense specified in clause (iv) of subparagraph (C) of
paragraph (2) of subdivision (e) of Section 667 or for an
offense requiring registration pursuant to subdivision (c) of
Section 290.
A principal in the actual theft of the property may be convicted
pursuant to this section. However, no person may be convicted
both pursuant to this section and of the theft of the same
property. (Penal Code § 496 (a).)
This bill provides that every person who buys or receives a
stolen firearm is guilty of an alternate felony/misdemeanor
offense punishable by imprisonment in the county jail for a
period of not more than one year, or by imprisonment in the
county jail pursuant to realignment, as specified.
Firearms Prohibition
Existing law requires that firearms dealers obtain certain
identifying information from firearms purchasers and forward
that information, via electronic transfer to Department of
Justice (DOJ) to perform a background check on the purchaser to
determine whether he or she is prohibited from possessing a
firearm. (Penal Code § 28160-28220.)
Existing law requires that, upon receipt of the purchaser's
information, DOJ shall examine its records, as well as those
records that it is authorized to request from the State
Department of Mental Health pursuant to Section 8104 of the
Welfare and Institutions Code, in order to determine if the
purchaser is prohibited from purchasing a firearm. (Penal
Code § 28220.)
Current federal law provides that certain people are prohibited
from owning or possessing a firearm:
Any person who:
Has been convicted in any court of, a crime punishable
by imprisonment for a term exceeding one year;
Is a fugitive from justice;
Is an unlawful user of or addicted to any controlled
substance, as defined;
Has been adjudicated as a mental defective or who has
been committed to a mental institution;
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Being an alien -
o is illegally or unlawfully in the United States; or
o except as specified, has been admitted to the United
States under a nonimmigrant visa, as defined;
Has been discharged from the Armed Forces under
dishonorable conditions;
Having been a citizen of the United States, has
renounced his citizenship;
Is subject to a court order that -
o was issued after a hearing of which such
person received actual notice, and at which such
person had an opportunity to participate;
o restrains such person from harassing,
stalking, or threatening an intimate partner of such
person or child of such intimate partner or person, or
engaging in other conduct that would place an intimate
partner in reasonable fear of bodily injury to the
partner or child; and
includes a finding that such person
represents a credible threat to the physical safety
of such intimate partner or child; or
by its terms explicitly prohibits the use,
attempted use, or threatened use of physical force
against such intimate partner or child that would
reasonably be expected to cause bodily injury; or
Has been convicted in any court of a misdemeanor crime
of domestic violence.
(18 USC § 922(g).)
Current California law provides that certain people are
prohibited from owning or possessing a firearm, including:
Lifetime Ban
Anyone convicted of a felony;
Anyone addicted to a narcotic drug;
Any juvenile convicted of a violent crime with a gun and
tried in adult court;
Any person convicted of a federal crime that would be a
felony in California and sentenced to more than 30 days in
prison, or a fine of more than $1,000;
Anyone convicted of certain violent misdemeanors, e.g.,
assault with a firearm; inflicting corporal injury on a
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spouse or significant other, or brandishing a firearm in
the presence of a police officer.
(Penal Code §§ 29800, 23515 and 29805.)
Existing law provides that a violation of these provisions is
a felony. (Id.)
Ten Year Ban
Anyone convicted of numerous misdemeanors involving violence or
threats of violence. (Penal Code § 29805.)
Existing law provides that a violation of these provisions is a
wobbler, as specified. (Id.)
Five Year Ban
Any person taken into custody, assessed, and admitted to a
designated facility due to that person being found to be a
danger to themselves or others as a result of a mental disorder,
is prohibited from possessing a firearm during treatment and for
five years from the date of their discharge. (Welfare and
Institutions Code §§ 8100 and 8103(f).)
Existing law provides that a violation of these provisions is
a wobbler, as specified. (Id.)
Temporary Bans
Persons who are bound by a temporary restraining order or
injunction or a protective order issued under the Family Code or
the Welfare and Institutions Code, may be prohibited from
firearms ownership for the duration of that court order. (Penal
Code § 29825.)
Existing law provides that the violation of these provisions
is a wobbler or a misdemeanor, as specified. (Id.)
This bill would add the following misdemeanor offenses to those
for which a conviction results in a 10-year prohibition on
possession of a firearm: (1) theft of a firearm (Penal Code §
490.2) and (2) receipt of stolen property, if the property is a
firearm (Penal Code § 496).
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This bill provides that the provisions of this legislation that
amend Proposition 47 (the firearm theft and receipt of a stolen
firearm penalty provisions) shall become effective only when
submitted to and approved by the voters at a statewide election.
This legislation further provides that a special election is
hereby called, to be held throughout the state on November 8,
2016. The special election shall be consolidated with the
statewide general election to be held on that date. The
consolidated election shall be held and conducted in all
respects as if there were only one election, and only one form
of ballot shall be used. This legislation additionally provides
that the Secretary of State shall submit the specified portions
of this legislation to the voters for their approval at the
November 8, 2016, statewide general election.
This bill calls an election within the meaning of Article IV of
the Constitution and states that it goes go into effect
immediately.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
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adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1. Proposition 47: Effect of this Legislation
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Proposition 47, also known as the Safe Neighborhoods and Schools
Act, was approved by the voters in November 2014. Proposition
47 reduced the penalties for certain drug and property crimes
and directed that the resulting state savings be directed to
mental health and substance abuse treatment, truancy and dropout
prevention, and victims' services. The initiative reduced the
penalties for theft, shoplifting, receiving stolen property,
writing bad checks, and check forgery valued at $950 or less
from felonies to misdemeanors. The measure limited the reduced
penalties to offenders who do not have prior convictions for
serious or violent felonies and who are not required to
registered sex offenders. (See Legislative Analyst's Office
analysis of Proposition 47,
http://www.lao.ca.gov/ballot/2014/prop-47-110414.pdf.)
Grand Theft of a Firearm
Proposition 47 added Penal Code section 490.2 which provides a
new definition for grand theft: "Notwithstanding Section 487 or
any other provision of law defining grand theft, obtaining any
property by theft where the value of the money, labor, real or
personal property taken does not exceed nine hundred fifty
dollars ($950) shall be considered petty theft and shall be
punished as a misdemeanor ?.." (Pen. Code, § 490.2, subd. (a),
emphasis added.) In other words, Proposition 47 put in a
blanket $950 threshold for conduct to be grand theft.
Previously, there were a number of carve-outs which made conduct
grand theft based on the conduct involved or the manner in which
the crime is committed or based on the value being less than
$950.
Because the new statute specifically states "notwithstanding
Section 487," it supersedes all of Penal Code section 487,
including subdivision (d)(2), which says that grand theft occurs
when the property taken is a firearm. The question becomes
whether, notwithstanding newly-created Penal Code section 490.2,
theft of a firearm remains a felony.
The drafters of Proposition 47 state that they did not intend to
reduce the penalty for theft of a firearm and explain:
Proposition 47 maintained California's numerous gun
laws-the strictest in the country-enabling felony
prosecution for any and all criminal activity related
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to guns. This includes gun thefts regardless of the
value of the gun. Gun crimes are, by definition,
serious crimes. Proposition 47 is exclusively limited
to non-serious and nonviolent crimes. Additionally,
dozens of felony provisions related to gun crimes are
maintained by Proposition 47, including (but not
limited to): possession of a concealed stolen gun or
possession of a loaded stolen gun; use of a firearm to
facilitate any crime (including when the gun involved
is being stolen and theft is crime in question);
stealing guns from residences, stores during
non-business hours, or locked automobiles; taking a
firearm from the person of another with force or fear;
or possession of a concealed stolen weapon by a gang
member or possession of a gun by a felon.
(http://www.safeandjust.org/prop47faq.)
A recent appellate court decision concluded otherwise in dicta.
(People v. Perkins (2016) 244 Cal.App.4th 129.) In People v.
Perkins, supra, the defendant was convicted of burglary,
receiving stolen property, three counts of grand theft of a
firearm, and several other offenses. He was sentenced to state
prison. After California voters passed Proposition 47, the
defendant filed a petition for resentencing to convert some of
his offenses to misdemeanors. (Id. at p. 132-133.) The
petition was denied and he appealed. The Court of Appeal did
not squarely address the issue of whether Proposition 47 reduced
the theft of a firearm to a misdemeanor when its value is less
than $950. Rather, what was at issue in the case was the
adequacy of the petition. The defendant actually had petitioned
only for resentencing on the receiving stolen property count
because the form provided by the superior court excluded the
option of petitioning for resentencing grand theft offenses.
(Id. at p. 136.) In affirming denial of the petition without
prejudice, the court noted, "Proposition 47 added a new
provision, section 490.2, subdivision (a), which reclassifies
felony section 487, subdivision (d)(2) grand theft violations
into misdemeanors. Thus, petitioner would be entitled to
resentencing on each conviction, provided he can meet his burden
of showing, separately for each firearm, that its value does not
exceed $950." (Id. at p. 141.)
Whether Proposition 47 made theft of a firearm a misdemeanor is
clearly subject to interpretation and debate. Given that the
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proponents contend that Proposition 47 did not change the
penalties for gun theft, clarifying the intent of the proponents
by stating that theft of a firearm remains a felony is seemingly
innocuous.
SHOULD THE LAW BE CLARIFIED TO EXPLICITLY STATE THAT THEFT
OF A FIREARM IS A FELONY?
Receipt of Stolen Property: Firearm
Proposition 47 amended Penal Section 496 to state: "Every
person who buys or receives any property that has been
stolen or that has been obtained in any manner constituting
theft or extortion, knowing the property to be so stolen or
obtained, or who conceals, sells, withholds, or aids in
concealing, selling, or withholding any property from the
owner, knowing the property to be so stolen or obtained,
shall be punished by imprisonment in a county jail for
not more than one year, or imprisonment pursuant to subdivision
(h) of Section 1170. However, if the district attorney or the
grand jury determines that this action would be in the interests
of justice, the district attorney or the grand jury, as the
case may be, may, if the value of the property does not exceed
nine hundred fifty dollars ($950), specify in the
accusatory pleading that the offense shall be a
misdemeanor, punishable only by imprisonment in a
county jail not exceeding one year, if such person has
no prior convictions for an offense specified in clause
(iv) of subparagraph (C) of paragraph (2) of subdivision
(e) of Section 667 or for an offense requiring registration
pursuant to subdivision (c) of Section 290." Unlike theft
of a firearm, pre-Proposition 47 receipt of a stolen
firearm was not a felony (it was a wobbler) and, thus, was
not a serious felony. (See Penal Code § 1192.7.)
The court explains how Proposition 47 changed the receipt
of stolen property provision in the Penal Code,
Receiving Stolen Property [punishment: up to one
year in jail]. If the value of the property
received does not exceed $950, section 496(a)
specifies the crime is a misdemeanor. Previously
section 496(a) gave the district attorney the
discretion to charge the crime as a misdemeanor if the
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property did not exceed $950; now the district
attorney must charge the crime as a misdemeanor if the
value of the property does not exceed $950.
(http://www.courts.ca.gov/documents/Prop-47-Information.pdf)
This legislation would add a provision to the Penal Code making
receipt of a stolen firearm a wobbler.
SHOULD RECEIPT OF A STOLEN FIREARM BE A WOBBLER?
3. Firearms Prohibitions for Misdemeanor Offenses
As detailed above, current state and federal laws prohibit
persons who have been convicted of specific crimes from owning
or possessing firearms. For example, anyone convicted of any
felony offense is prohibited for life from firearms ownership
under both federal and state law. (18 U.S.C. § 922(g); Penal
Code § 29800.) California goes further and imposes a 10-year
firearms prohibition on persons convicted of numerous
misdemeanor offenses that involve either violence or the threat
of violence. (Penal Code § 29805.) Additionally, anyone who
has been found to be a danger to themselves or others due to
mental illness is subject to a five-year prohibition (Welfare
and Institutions Code §§ 8100, 8103(f)), and people under
domestic violence restraining orders are subject to a
prohibition for the duration of that court order. (Penal Code §
29825.)
According to a study published in the Journal of American
Medical Association:
Handgun purchasers with only 1 prior misdemeanor
conviction and no convictions for offenses involving
firearms or violence were nearly 5 times as likely as
those with no prior criminal history to be charged
with new offenses involving firearms or violence.
(Wintemute GJ. Prior Misdemeanor Convictions as a Risk Factor
for Later Violent and Firearm Related Criminal Activity Among
Authorized Purchasers of Handguns. Journal of the American
Medical Association 1998; 280: 2083-2087.)
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To this end, this bill would expand the number of misdemeanor
convictions resulting in a 10-year prohibition by adding theft
of a firearm and receipt of a stolen firearm.
4. California Constitutional Limitations on Amending a
Voter Initiative
Because Proposition 47 was a voter initiative, the Legislature
may not amend the statute without subsequent voter approval
unless the initiative permits such amendment, and then only upon
whatever conditions the voters attached to the Legislature's
amendatory powers. (People v. Superior Court (Pearson) (2010)
48 Cal.4th 564, 568; see also Cal. Const., art. II, § 10, subd.
(c).) The California Constitution states, "The Legislature may
amend or repeal referendum statutes. It may amend or repeal an
initiative statute by another statute that becomes effective
only when approved by the electors unless the initiative statute
permits amendment or repeal without their approval." (Cal.
Const., art. II, § 10, subd. (c).) Therefore, unless the
initiative expressly authorizes the Legislature to amend, only
the voters may alter statutes created by initiative.
As to the Legislature's authority to amend the initiative,
Proposition 47 states: "This act shall be broadly construed to
accomplish its purposes. The provisions of this measure may be
amended by a twothirds vote of the members of each house of the
Legislature and signed by the Governor so long as the amendments
are consistent with and further the intent of this act. The
Legislature may by majority vote amend, add, or repeal
provisions to further reduce the penalties for any of the
offenses addressed by this act."
(http://vig.cdn.sos.ca.gov/2014/general/pdf/text-of-proposed-laws
1.pdf#prop47.)
This bill provides that the Proposition 47 provisions go to the
voters for ratification.
- END -
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